Today, we are joined by one of the pioneers of Therapeutic Jurisprudence (TJ), Professor David Wexler. Professor Wexler has in the past written about how expungement/spent conviction remarks may uplift the petitioner, but the present blog goes an important step beyond and concentrates on how judicial remarks given when one has an on-the books record can, if carefully crafted, appeal to prospective employers, landlords, academic administrators, and the like...
I recently learned of a pro forma – yet successful – felony expungement proceeding, a proceeding that puts into sharp focus the difference between the Therapeutic Design of the Law (TDL) and the Therapeutic Application of the Law (TAL).
The case
The Petitioner, with a many years-old felony drug conviction and otherwise lawful behavior, hired a lawyer to represent him in a proceeding to eliminate the conviction from his record. Local law permitted the elimination after the required waiting period, a process that requires a hearing if the court or prosecutor requests one. It seems that, in these cases, a hearing is generally held, although, as in this case, the prosecutor often does not object to the cleansing of the record.
Here is how the whole process played out: the petitioner was asked by the lawyer to secure two or three witnesses to his good character—to his “good reputation in the community.” He easily recruited a few friends and took their basic information (age, civil status, etc.) and forwarded this information to his lawyer. In the case of one witness, in addition to providing the very basic requested information, the witness noted that he had seen the petitioner in a work environment, supervising youths in recreational activities, and that the petitioner had performed with high competence and responsibility.
The lawyer didn’t personally interview the witnesses and prepared the required affidavits in a bare-bones manner, not including, for example, the comment by the one witness who volunteered information about the petitioner’s work behavior. A hearing was ultimately held, at which time the three witnesses appeared in court. Then and there, the prosecutor, while waiting for the judge to enter the courtroom, asked each prospective witness two questions:
“how long have you known the petitioner?”, and “what is his reputation in the community?”
The judge entered the courtroom, called the case, and the petitioner and three witnesses stood and came forward. The petitioner’s lawyer moved for the expungement, the prosecutor said he had no objection, the judge asked the petitioner how he was doing, and then ruled the conviction expunged.
The petitioner, witnesses, and a few relatives and friends then left the courtroom. The petitioner was pleased that this was behind him, thanked the lawyer, witnesses, friends and family, and that was that.
So what are we to make of all this?
First, if we consider the therapeutic design of the law (TDL), in this case the expungement law, we can see that it is TJ-friendly in that it maximises a person’s wellbeing and also the wellbeing of the broader community by supporting a person’s rehabilitation and reintegration. Given the result and the satisfaction of the petitioner, should we in the TJ community ask/hope for more? Surely, more could have been done by lawyer, prosecutor, and judge, and could have led to a much more robust therapeutic application of the law (TAL)—of course with the identical result of expungement.
- The lawyer could have interviewed the witnesses, probed them for positive details, and could have prepared impressive factual affidavits.
- These affidavits would have alerted the prosecutor to the facts underlying the petitioner’s good reputation in the community, making even more likely the prosecutor’s non-objection to the petition.
- The lawyer, in asking for the expungement, could have emphasized these facts, commending the petitioner for his behavior and his demonstrated strengths.
- The prosecutor, having no objection to the expungement, could also have emphasized the favorable facts, and could in fact have affirmatively joined in the motion to expunge.
- The judge could have reiterated all this, congratulating the petitioner, acknowleging the support of family and friends, and wishing the petitioner well for the future.
In my view, the additional effort, though not changing the result, should be made in cases such as this one. Though the petitioner was surely pleased with the result, it seems evident that had his lawyer spoken of his good qualities, his success at his job working with adolescents, and the like, that would have been appreciated. And it might well have led the prosecutor to affirmatively join in the motion to expunge the criminal record. With all that happening, it would be most appropriate and natural for the judge to have acknowledged this success, to congratulate the petitioner, to mention to the family that they should be very proud of petitioner’s success. The proceedings could be concluded with an uplifting round of applause.
All of this should do much to reinforce the petitioner’s self-concept and hope for the future.
And consider also what we might call the “secondary” or “vicarious” therapeutic effect: If expungement hearings were to be held at the start of a busy court room where current people who are accused or have recently offended are present, these expungement hearings may serve as a beacon for offenders to see how they too could make this shift. And witnessing the process may also serve as a psychological boost to lawyers, prosecutors, and judges, who may otherwise be ground down by the recidivism they see in their busy criminal lists, to be reminded that rehabilitation can and does happen, and that the therapeutic application of the law can be inspiring.
Sharing expungement stories?
We’ve seen above how expungement ought to be taken seriously and ought to include statements that should boost the self-confidence of the petitioner. But can these statements go further? Might we promote their use as a sort of informal recommendation letter?
I think these hearings and statements would be rarely used in that context. Remember, expungement typically occurs years after conviction and release. In the case of the situation discussed above, the petitioner had completed his sentence years earlier and was already serving –well–in a work situation relating to youth recreation. Having a wiped record at this point may be a comfort now, but it is unlikely someone in that situation would want to share judicial remarks to, for example, secure a new job or to lease an apartment. However, many others are facing a different reality, for which a sort of “judicial recommendation” might be very helpful.
Sharing work experience when one has an on-the-books record is a different story
A recent article by Sade Lindsay, Damned if you do, damned if you don’t: how formerly incarcerated men navigate the labor market with prison credentials, describes formerly incarcerated men, now on probation, struggling to enter the workforce with an existing criminal record, but who have had good training while in prison. The prison credential dilemma” generally leads job applicants to downplay their prison experience when applying for a job, but to use it constructively if they are called for an interview. Then, they will try to quickly skim over their record and shift to using ‘redemptive narratives” to try to secure the job.
The prison credential situation is complicated, well beyond my experience, and is mentioned here mainly to begin to analyze how, with an existing criminal record, judicial remarks may be used in an informal reference letter situation. Here, my interest was piqued by an outstanding undergraduate thesis by Anjulie Grimm, The Marketing of Wine: How Therapeutic Jurisprudence Can Increase Society’s Acceptance of Defendants. Anjulie’s interest was basically in engaging the general public, but the approach I have chosen to take is a more pragmatic one: to show how judicial statements might, in the right circumstances, be written to point out not only the judicially-involved person’s compliance with given conditions but also the skills, talents, and attributes relevant to living and working in the community in a successful way.
Learning from the HOPE program
An excellent place to start is the HOPE program in Hawaii. It was given international attention by Australian Lorana Bartels who visited Hawaii, observed hearings held on probation cases there, and concluded that the HOPE program, which in its language appears to be a strict deterrence program (swift, certain, and fair sanctions) is in actual practice, given the behavior of its founding judge, guided by TJ features. This all likely explains the success of the program in Hawaii! Read her piece here: Hawaii’s Opportunity Probation with Enforcement (HOPE) Program: Looking through a Therapeutic Jurisprudence Lens.
Lorana Bartels suggested several ways that the program was conducted in a TJ-way. One example lies in the ‘Warning Hearings’, where new probationers are told in clear terms what is expected of them and what the consequences are for non-compliance. The judge noted he gave these warning notices to the group as a whole, obviously to save time, but also so all would know they are being treated exactly in the same way; no special treatment here.
Another technique often taken advantage of here is a provision in the general state law allowing, in special instances, the ‘Early Termination of Probation’. The judge noted he awarded this much more than would be the case in the average state probation cases probation. The Early Termination cases are conducted in a somewhat celebratory manner, and on occasion the judge would quote from the impressive remarks made to him by the probation officer.
These sorts of judicial statements might indeed be used by the probationer and shared with others – potentiallly employers, landlords, and the like, where they may in practice serve the function of informal reference letters. If judges and probation officers are given examples of the types of talents, skills, accomplishments of likely interest to persons beyond the probationer and his/her family, we can expect to see an improvement in the usability of judicial remarks and their inclusion of relevant statements by probation officers.
Thinking about the general area of probation
From here, we can move comfortably to the general area of Probation. With simple probation, remarks made at its successful termination might be welcome and serve a valuable function as the person begins to tackle life free from state control.
And what about the more complicated situation of an incarcerative sentence followed by a “probation tail”? A probation tail may be resorted to especially in jurisdictions where parole officers are overworked and under resourced, and where the sentencing judge prefers supervision by court-connected and well-trained probation officers, often with advanced education and competency in areas of drug rehabilitation, employment, housing, and the like.
This is often an ideal situation for employing an Early Termination of probation–even if terminated by reducing it by only a matter of months. In such cases, a request for early termination might come at the court’s own initiative, or by the defense, prosecution, or in a joint motion. It can be treated in a celebratory manner, with family invited, and even the arresting officer–a kind of mini-version of what happens in drug court graduations. See a paper I co-authored with Judge Mike Jones Creating Reentry Courts by Wagging the “Probation Tail”.
Note that the probation tail is recommended mainly in jurisdictions where parole is severely overworked. But if the parole option is viable, the question for us should then be how the parole system may be able to encourage the sort of remarks helpful to potential employers, landlords, educational programs and the like.
(And as an important aside, I am pleased to note that the University of Puerto Rico has created some important educational opportunities for incarcerated persons and recently featured how several have now completed an undergraduate degree–a number with honors! The downside is that, as of now, without a change in the law, many will need to serve several more years before possible parole release becomes available, El Nuevo Dia, 2 junio 2022, p 10, “Graduacion de Confinados)
The challenge for us now might include looking over various published items such as drug court graduation remarks, HOPE early termination remarks, and the like to see how suggestions can be made regarding the expansion of those remarks and of probation officer comments so that those remarks might serve the additional function of informal reference letters.
Those existing remarks, however, are likely to be rather perfunctory, since their primary purpose is typically not addressed to an audience of potential employers, landlords, educational institutions, and the like. What is really needed at this point, I think, is to engage judges, lawyers, probation officers, and the wider TJ community, to imagine and create “model” statements of how relevant accomplishments might be best expressed in clear and crisp language.
Next Steps….
In my view, such a “model” statements project might work well in connection with the Judicial Outreach Group of the International Society for Therapeutic Jurisprudence, always striving to promote “judging in a therapeutic key.” If you are interested in working on such a project please get in touch: Email: davidBwexler@yahoo.com
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